Civil Practice & Procedure

Editor:

John S. Sandberg, EsquireFiling of late notice of appeal not allowed in statutory
proceedings such as unemployment claims; Supreme Court Rule 81.07 does
not apply. Williams v. Labarge Products, Inc. and Division of Employment Security, No. 96161 (Mo. App. E.D., March 22, 2011), Richter, CJ.In this appeal, claimant appealed from a decision of the Labor
Industrial Relations Commission which reversed the appeals tribunal's
decision to award unemployment benefits to the Claimant. Claimant
admittedly filed a late Notice of Appeal, claiming the decision of the
Commission was not received in a timely fashion because his girlfriend
held his mail out of an act of revenge. Held: Appeal dismissed. The unemployment statute set forth stringent guidelines for the
filing of the notice of appeal and made no provision for filing a late
notice of appeal, so the provisions of Supreme Court Rule 81.07 do not
apply to special statutory proceedings such as unemployment claims.

A pleading of "acting without malice" in a malicious
prosecution case does not constitute a waiver of attorney/client
privilege. Discussion of procedure when privilege against
self-incrimination is waived. State ex rel. Behrendt v. Honorable Neill, Twenty-Second Judicial Circuit, City of St. Louis, Missouri, No. 95541 (Mo. App. E.D., March 15, 2011), Scott, J.In this original proceeding in prohibition the Relators are defendants in malicious prosecution case pending before Respondent in
which it is alleged that two federal lawsuits were filed without legal
or factual basis. The federal cases were dismissed and this malicious
prosecution case followed. The plaintiffs in the malicious prosecution
case obtained partial summary judgment with the only remaining issue
being whether the federal lawsuits were instituted maliciously.
Plaintiffs subpoenaed the other documents about the lawyer for the
Relators' investigation.The subpoena was quashed when the Relators
waived their right to assert the advice of counsel as a defense.
Plaintiffs then moved for production of e-mails between Relators and
their lawyer claiming Relators had waived their attorney/client
privilege by pleading an affirmative defense that they acted reasonably
and without malice, and admitted to opposition that they relied on
their lawyer. Respondent agreed and this prohibition followed.Held: Prohibition made absolute.The fact that Relators pleaded that they acted without malice did not
waive the attorney/client privilege, because malice is an element of
the plaintiffs' malicious prosecution case, not the defendants'.
Secondly, they did not lose the privilege by answering opposing
counsel's deposition question because waiver extorted in a
cross-examination is not voluntary. Finally, the plaintiffs argued the
fraud exception to the attorney/client privilege. The court held this
is an open question under Missouri law and the court did not reach the
issue in this case because here the plaintiffs were not claiming they
were defrauded but instead, claim a fraud was perpetrated on the
federal court.